Gilman v. Moore

The opinion of the court was delivered by Bennett, J. The note upon which this action is brought is payable £ in good, well-finished plows.’ The parol evidence of the agreement, made at the time the note was given, that if there should be improvements in the pattern, the plaintiff should be entitled to receive on the note plows of the improved kind, was rightfully excluded. The effect of it is to vary the operation of the note, and, instead of the [461] note’s being payable ‘ in good, well-finished plows,’ which doubtless would include such as were of ordinary use, at the time the contract was entered into, it would be confined to such as should be subsequently made, according to the improved pattern. The more important question in the case arises upon the tender. The note was payable in the month of February. The case finds that on the last day of January, 1840, the defendant set apart plows, of the kind and quality described in the note, to the amount of the note, and marked the plaintiff’s name on each one of them, and they remained near the defendant’s shop, where they were turned out, down to and through the month of May, when the note was sued. As the plows were turned out before the note became due, they did not, at that time, vest in the plaintiff, and the note was not then paid. The note, by its terms, being payable in the month of February, the defendant might pay it any day in the month. Under the charge of the court the jury must have found that the plows were turned out for the purpose of paying the note, and were kept in that condition, and for that purpose, from that time through the month of February. It is said, in argument, that about the first of May it was discovered that the wheels of two of the plows had been taken away, but there is no evidence that this was done before the note became payable, and the jury have negated the fact that it occurred before the first of March. The jury, then, have found that there was a continuation of, or keeping good, the tender or turning out of the property up to and through the last day upon which the note was payable. The law never requires a useless act, and we can see no reason why the defendant should be again required to turn out the property in direct terms. It had been expressly turned out, set apart, and marked with the plaintiff’s name. The jury have found the purpose and the intent with which it was done, and that the plows were kept in the same place and condition down to the first of March. The effect of the finding of the jury must be to vest the property in the plows in the plaintiff, and the note is thereby satisfied. See McConnell v. Hall, Brayton’s R. 223. It was of no consequence to the parties that the defendant should have caused the plows to be examined on some day upon which the note was payable, except it [462] might have the more readily furnished him with the means of proof. If we admit that the defendant, as is contended, after this became the bailee of the property, still the payment of the debt would not be affected, though the property might have been damaged or carried away through his neglect. The remedy, in such case, would be by a special action for such negligence. The judgment of the county court is affirmed.